The Relationship Between Surgical Complications And Medical Malpractice

Are doctors bound by their oath and malpractice insurance to ensure that there are no surgical complications that occur after a patient has gone through surgery? Surgical complications occur when there are circumstances beyond the doctor’s control that affect the outcome of a surgery. For example, if a patient has a slower healing rate than normal then this could cause complications during recovery. Until the surgery has been completed, the surgeon has no way of knowing that this circumstance exists.

Surgical errors occur when a surgeon uses negligent medical practices and creates circumstances that could have been prevented with the proper due diligence. Surgeons who are known for taking on more complicated surgical procedures will often have histories of complications occurring, but that is not necessarily indicative of the quality of care being given. In the medical malpractice world, complications and errors both have to be proven, so it can be said that insurance companies do not consider complications and errors to be any different.

The Medical Malpractice Trend

The number of medical malpractice lawsuits that were paid has dropped from 12,977 in 2010 to 11,582 in 2015. This trend would indicate that it is becoming more difficult for lawyers to prove that a doctor was negligent for the complications that arose after a surgical procedure. It could also indicate that a rise in malpractice insurance premiums has caused doctors to become more diligent in their processes.

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Can Rising Insurance Premiums Curb Malpractice?

The idea that rising insurance premiums could help lower complications was the focus of a study done by Dr. Karl Bilimoria of the Feinberg School of Medicine at Northwestern University. The average annual malpractice insurance premium for general surgeons has reached $47,000, which would be a considerable amount of money for any self-employed surgeon. Many experts speculated that this rise in premium costs would force doctors to be more careful and reduce complications, but that was simply not the case.

Dr. Bilimoria’s study found that insurance premium rates do not have an effect on the quality of work done by surgeons in any field of expertise. Factors such as the speed at which hospitals want procedures done so that more patients can be seen appear to be more responsible for the number of complications being experienced than insurance premiums. Since complications and errors are both covered by medical malpractice insurance, the deciding factor appears to be the medical practices used by surgeons to prevent both incidents from occurring.

What Are Surgical Complications?

A list of potential surgical errors as provided from a legal point of view gives plenty of complications that can be considered as errors.The list includes complications such as infections and nerve damage as part of surgical errors. This would suggest that insurance companies and attorneys look at both complications and errors as the result of surgeon negligence and both are viable options for a medical malpractice lawsuit.

The study by Dr. Bilimoria found that conditions such as sepsis and organ failure were common surgical complications that would also be put in the category of surgical errors. When surgeons make these errors or when surgeons do not take the necessary steps to prevent complications, that opens the surgeons up to malpractice lawsuits. However, as the data shows, the number of malpractice lawsuits that actually result in payouts is declining. The amount of money being paid out for medical malpractice cases, when adjusted for inflation, has remained relatively stable. But the number of cases being awarded are dropping, and that puts pressure on lawyers.

What Causes Errors and Complications?

There is no finite list of reasons why surgical complications and errors occur, but there are common reasons why patients find themselves coming out of surgery feeling worse than when they went in. The most common reasons for surgical errors or complications include:

Lack of planning – The ability of a surgeon to get sued for lack of preparation is exactly why patients are put through so many tests before a surgery occurs. If a surgeon does not collect every possible detail pertaining to the patient’s health status before starting a surgery, then anything that happens during the surgery could be considered negligence.

Blatant negligence – When a surgeon forgets to utilize basic procedures during a surgical operation, then complications can occur. If the surgical instruments are not properly sterilized, then the resulting infection could wind up being a medical malpractice lawsuit for the surgeon and the hospital.

Lack of communication – A surgeon must go through a comprehensive checklist of items before beginning a surgery. If there is a chance that a particular medication may be required during the surgery and the surgeon does not request the medication, then the resulting error or complication due to the lack of that medication would be the fault of the surgeon.

Incapacitation – Surgeons who work too hard are not going to win any points in the eyes of insurance companies or lawyers. When a surgeon enters a surgery either too tired, intoxicated, ill or incapacitated in any way, then the surgeon is inviting a medical malpractice lawsuit even if there are no complications.

Poor performance – Responsible surgeons will know their limitations and refer more qualified surgeons to take on complicated cases. If a surgeon enters into a surgical procedure without the right kind of experience or training, then that decision could get the surgeon a trip to court.

What Should Patients Do If Medical Complications Arise?

Patients should understand that the ability to sue a doctor for malpractice will be there after the patient has recovered from their initial surgery. If there are complications with your surgery or if there was a surgical error that has caused you problems, then you should get those issues addressed before you start thinking about a legal proceeding. Your health is the most important thing, and even a good lawyer will tell you to take care of the medical issue before trying to start a malpractice lawsuit.

Once your condition is stabilized, you need to contact an attorney who has experience in medical malpractice cases dealing with surgical complications or errors. This does not mean that your attorney will be a medical expert. It means that your attorney will know how to use the resources at their disposal to put together a case that will accurately tell your story.

Proving Negligence In A Lawsuit

A medical malpractice lawsuit based on surgical complications can be extremely difficult to prove and win. With the number of malpractice awards dropping from year to year, patients need to be sure that they choose an experienced professional to protect their rights. A surgical error or complication, even when it is corrected as much as it can be, could change your life forever.

As a victim of medical malpractice, you are entitled to compensation that will help you to live your life the way you want to. Patients should never avoid filing a medical malpractice lawsuit because they are not comfortable saying that the surgeon made an error. Doctors are human, and they can make mistakes. It is important that patients protect their rights and prevent themselves from having to live with a surgeon’s mistake for the rest of their lives.

Tom Moverman, Esq. is a founding partner of Lipsig, Shapey, Manus & Moverman, P.C. With his almost four decades of trial experience, Tom has helped the Lipsig Firm recover more than $500 million for injured clients. He is the author of key chapters in industry-leading textbooks, focusing on his main practice area: product liability law. As lead author of our blog, Tom provides up-to-the-minute legal news and personal injury advice to readers across New York.

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